Tex. April 7, 1999) (hereinafter, "Slip. Op."). Relying instead on the work of a

small number of academic "individual rights theorists . . . [who] argue that the

amendment protects an individual right inherent in the concept of ordered liberty,"1.
_________________________

1. The individual rights theorists label their account of the Second Amendment the
"Standard Model," Slip. Op. at 5, which implies that it is espoused by the majority of
constitutional law scholars. Amici deny that this is the case. Perhaps because the Miller view of
the Second Amendment has been settled law for so long, few constitutional law scholars have
published analyses of the Amendment. Among those commentators who have addressed the
Amendment, several have advocated interpretations consistent with this Brief. See, e.g., Carl
Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309 (1998);
Id. at
317 n.34 (citing sources); Dennis Henigan, Arms, Anarchy and the Second Amendment, 26 Val.
U.L. Rev. 107 (1991); John Dwight Ingram & Allison Ann Ray, The Right(?) to Keep and Bear
Arms, 27 N.M.L. Rev. 491 (1997); cf. Laurence Tribe, 1 American Constitutional Law 902 (3d
ed. 2000) ("the academic debate over the scope of the Second Amendment is largely irrelevant to
contemporary gun control proposals, which . . . are plainly constitutional"); Akhil Reed Amar,Second Thoughts, The New Republic, July 12, 1999 at 24 ("A modern translation of the
amendment might thus be: 'An armed and militarily trained citizenry being conducive to freedom,
the right of the electorate to organize itself militarily shall not be infringed.'"). Of particular

2

id. at 5, the District Court invalidated 18 U.S.C. § 922(g)(8) (the "Statute") without

any finding that the Statute interferes with the operation of states' militia. This

holding was erroneous.

The Second Amendment is about the allocation of military force. Those who

framed and ratified it intended to prevent the new central government from

disarming the states' militia. Because the Statute has no effect on the militia, it does

not violate the Second Amendment.

I The plain text and legislative history of the Second Amendment
demonstrate that the Amendment protects only the right to "bear Arms"
for the purpose of service in the "Militia," and does not prohibit
Congress from restricting firearm ownership unrelated to militia
service.

The District Court holding is contrary to the plain text and legislative history

of the Second Amendment. Following common usage, the framers of the Second

Amendment used the phrase "bear Arms" to refer to possession of weapons for

military use. The Amendment further specifies that its purpose is to protect the

carrying weapons, is not spoken of or thought of as 'bearing arms.'").2.

B. The "well regulated Militia" clause of the Second Amendment
shows that the Amendment establishes a "right to keep and bear
Arms" for use in the
militia.

___________________________

2. The presence of the word "keep" in the Second Amendment does not change the
Amendment's fundamentally military meaning. The language "keep and bear Arms" should be
understood as a single term of art, such as "arbitrary and capricious" or "willful, deliberate and
premeditated." To the extent that "keep" has an independent meaning in the Amendment, it
simply precludes a narrow reading of the Amendment that would protect only the possession of
firearms by persons actively engaged in militia duties (permitting, for example, the federal
government to require weapons to be stored in a central depository). By protecting the right to
"keep" as well as "bear" arms, the Amendment ensures that militiamen are able to store their
weapons at home, thus making militia disarmament more difficult.

9

Even if the Bear Arms Clause,3 standing by itself, could be read as

establishing a broad right to firearm possession unrelated to militia service, the

Second Amendment as the framers actually adopted it cannot be so read. "With

obvious purpose to assure the continuation and render possible the effectiveness of

such forces [i.e., the states' militia] the declaration and guarantee of the Second

Amendment were made. It must be interpreted with that end in view."

Miller, 307 U.S. at 178.

No court has ever held that the Well Regulated Militia Clause has any effect

independent of the Bear Arms Clause. Without an independent meaning, the Well

Regulated Militia Clause must be read to qualify and elaborate the Bear Arms

Clause. To do otherwise as the District Court did would be to render the Well

(1803). As the Supreme Court of Georgia put it, interpreting an analogous state

constitutional provision: "[T]he object of the clause is declared to be to secure to the

state a well regulated militia. Has this declaration no significance? Is the clause to

be interpreted without reference to it? On the contrary, by the well settled rules for

the interpretation of laws, as well as by the dictates of common sense, the object
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3. This Brief will refer to the language "A well regulated Militia, being necessary to the
security of a free State," as the "Well Regulated Militia Clause," and to the language "the right of
the people to keep and bear Arms, shall not be infringed" as the "Bear Arms Clause."

10

and intent of the law is the prime key to its meaning." Hill v. Georgia, 53 Ga. at

476. In the District Court's reading of the Amendment, by contrast, the Well

Regulated Militia Clause has no effect or purpose.

C. James Madison's original draft of the Second Amendment and the
First Congress' revisions to that draft confirm that the
Amendment's framers intended to protect only possession of arms
related to militia service.

The drafting history of the Second Amendment confirms that its framers

sought only to create a right to "bear Arms" in connection with the states' "well

regulated Militia." Madison's initial draft ("The right of the people to keep and bear

arms shall not be infringed; a well armed, and well regulated militia being the best

security of a free country: but no person religiously scrupulous of bearing arms,

shall be compelled to render military service in person.") contained

not only early versions of the Well Regulated Militia Clause and the Bear Arms

Clause, but also a third clause concerning conscientious objectors. Documentary

Record, supra, at 12. This third clause, and the entire sentence as Madison wrote

it, is limited to the bearing of arms for "military service." If the Second Amendment

had been adopted as originally drafted by Madison, its scope would unmistakably

11

be limited to the possession of weapons for use in the militia.

As it happened, Congress removed the conscientious objector clause, but this

deletion should not change our understanding of the remaining language. Those

who objected to the clause argued that allowing federal judges to define

conscientious objector status would usurp the states' prerogative to determine

militia eligibility. Id. at 182-84. Virtually all of the recorded debate in the First

Congress on what became the Second Amendment concerned the conscientious

objector clause, and no participant in the debate expressed any concern about

individuals being denied the right to gun ownership.

Besides eliminating the conscientious objector clause, Congress made other

revisions to Madison's draft; each sharpened the Amendment's focus on assuring

the states' ability to maintain militia. First, Congress pushed the Well Regulated

Militia Clause to the front of the sentence; this deliberate rewriting shows Congress'

intention that the Amendment prevent threats to the militia, and not to arms

ownership generally.4 Second, Congress deleted "well armed" from the Well

_______________________

4. At the same time the congressional drafters switched the order of the clauses, they
inserted two unusual commas that further emphasize the framers' intention to prevent federal
interference with the militia. Under ordinary usage, the first and third commas in the Amendment
are unnecessary. If these commas had not been inserted, it would be possible to understand the
Well Regulated Militia Clause as simply explaining the rationale for the Bear Arms Clause (the
Amendment would then read: "A well regulated Militia being necessary to the security of a free
State, the right of the people to keep and bear Arms shall not be infringed."). But the commas are
in fact in the text proposed by Congress and ratified by the states, and they prevent this reading.

12

Regulated Militia Clause; the phrase was redundant, because the "Arms" protected

by the Amendment were precisely those used by the militia. Third, Congress

replaced "country" with "State" in the Well Regulated Militia Clause, showing the

concern of the drafters to protect states against an overweening federal government.5

D. The debates surrounding proposal of the Second Amendment show
that the framers of the Amendment intended to prohibit the
federal government from disarming the states' militia and
manifested no intention to protect individual firearm ownership unrelated to the militia.

The Second Amendment, like the rest of the Bill of Rights, was designed to

address concerns voiced in the debates over ratification of the Constitution in 1787

and 1788. Throughout these debates, Anti-Federalists charged that the proposed

_____________________

The first unusual comma between "Militia" and "being" forces the reader to search
for a verb for which "Militia" is the subject. That verb does not appear until "shall not be
infringed" near the end of the Amendment. The second unusual comma between "Arms"
and "shall" sets off the
verb phrase "shall not be infringed" from the preceding language; it suggests that the subject for
this verb phrase is not simply "the right of the people to keep and bear Arms." The grammatical
effect of these two unusual commas is to link "A well regulated Militia" to "shall not be infringed"
to emphasize, in other words, that the goal of the Amendment is to protect the militia against
federal interference. The Constitution was drafted with great care, and (unlike much legal writing
from the Founding period) its use of punctuation generally conforms to modern conventions,
suggesting that the commas in the Second Amendment are not haphazard but rather deserve
scrupulous attention.

5. A fourth change, making "A well regulated Militia, being the best security of a free
State," into "A well regulated Militia, being necessary to the security of a free State," reflects the
framers' hostility to standing armies, which is discussed in Section I.D, infra. See Documentary
Record, supra, at 184 (statement of Elbridge Gerry in First Congress) ("Mr. Gerry objected to the
first part of the clause, on account of the uncertainty with which it is expressed: A well-regulated
militia being the best security of a free state, admitted an idea that a standing army was a
secondary one.")

13

Constitution would permit the establishment of "standing armies in time of peace."